On The Effectiveness Of Unregistered Real Estate Mortgage Contract

In civil legal activities,real estate mortgage is a commonly used means to guarantee the realization of creditor’s rights.After the establishment of the principle of "two points of real estate debt" in the Real right Law,the real estate mortgage contract has already had legal effect at the time of the establishment of the contract,but the entry into force of the real estate mortgage must be carried out in accordance with the procedure prescribed by law,that is,the mortgage registration must be carried out in order to have legal effect.In other words,the legal effect of the mortgage contract does not necessarily mean that the mortgage has legal effect,and the time point of the entry into force of the two is not the same.Article 4202 of the Civil Code also extends the provisions of the Real right Law,That is,real estate mortgage only after registration has legal effect.Therefore,if the real estate mortgage contract has been signed,but has not been registered,then if the creditor’s rights have been damaged,how should it be remedied? The question of what the mortgagor should bear is particularly difficult,because there is a large number of "different judgments in the same case" before the implementation of the Civil Code.Article 60 of the Summary of the National Court’s Civil and Commercial Judicial Conference(hereinafter referred to as "the Nine people’s minutes ")clearly states that if the real estate mortgage contract has entered into force,but does not go through the mortgage registration procedures in accordance with the relevant provisions,and creditors require the mortgagee to go through the mortgage registration procedures,then the court should support it.If the mortgage is lost or the mortgage is transferred,which results in the inability to register the mortgage,the court may,at the request of the creditor,let the mortgagor bear certain legal liability.However,The mortgagor’s legal liability is limited to the value of the mortgage and can not exceed the legal liability of the mortgagor when the mortgage is valid.However,based on this provision,we can only know that in the absence of real estate mortgage registration,the creditor can request the court to require the mortgagor to register the mortgage.If the mortgagor can not register the mortgage,it should bear the corresponding legal liability,and the scope of the mortgagor’s liability should be limited to the value of the mortgage,and it is not clear whether the mortgagor is liable for breach of contract or security,or joint and several warranty liability after the conversion of invalid acts? Moreover,the Nine People’s Summary is not a document of legal nature,and can not be directly cited as the basis of judgment in judicial decisions.After the entry into force of the Civil Code and its judicial interpretation,the relevant contents of the security system have been greatly revised,in which the specific provisions on how the rights and obligations of creditors and guarantors should be clarified when the security contract has no legal effect have been made,and there are new views on the validity of the mortgage contract when it is not registered and the way to solve it,but there are still some problems that have not been solved,and there are some contradictory views on the judicial interpretation of the security system itself.So this article is based on the Civil Code and its judicial interpretation before the introduction of practical disputes,based on the latest legal provisions,analysis of the latest legal provisions,real estate mortgage contracts should be dealt with when not registered,whether the previous practice disputes can have a proper solution,what disputes.